Sunday, July 13, 2008

Discovery Channel

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked at Rule 16(a)(1)(B)(ii), which mandates discovery of all statements the defendant makes in response to interrogation by a known government agent. The court concluded that Siraj’s reading of subsection (B)(i) would make subsection (B)(ii) superfluous because “every statement discoverable under subsection (ii) would also be discoverable under subsection (i).”

Second, the court held that, since subsection (B)(ii) expressly makes discoverable only those statements made to known government agents, “Rule 16 implicitly excludes from its scope written memorializations of other oral statements such as those at issue here.”

Finally, the court rejected Siraj’s argument that a 1975 case, Johnson, under which the statements would have been discoverable, applied. Since Rule 16 did not have a provision like (B)(ii) at that time, the case did not govern here.

Comment

This decision is probably correct, although there are better reasons than those cited by the court. The real key here is the word “by” in Rule 16(1)(B)(i). That word seems to limit this provision to statements, or at least writings, attributable to the defendant himself, i.e. those he authored, and not accounts memorialized by others.

It should also be noted that this case is probably not as grave a problem for defendants as it would seem at first glance. It does not seem that Siraj is claiming that he did not get the reports at all. Although one cannot tell for certain from the opinion, it appears that he got the reports as Rule 3500 material of either the undercover or his handler, and that his only real complaint is that he wished he had received them sooner, which he would have under Rule 16. Unfortunately, careless drafting of the opinion makes it difficult to tell for sure. But, obviously, if Siraj got the reports as 3500 material, he would be hard pressed to claim prejudice about the timing of the disclosure. They were, after all, his own statements. The court would therefore not likely be sympathetic to a claim of unfair surprise.